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30 Aug 2007 17:30
Health Minister Manto Tshabalala-Msimang’s medical records, obtained unlawfully from the Cape Town Medi-Clinic, must be returned to the institution “forthwith”, the Johannesburg High Court ordered on Thursday.
Delivering the order after having reserved judgement in the case between the minister and the Sunday Times, which reported on her behaviour during a 2005 stay at the hospital, Judge Mahomed Jajbhay also ordered that all the minister’s medical records on journalists’ laptops and computers be deleted.
However, he said personal notes of Sunday Times journalists “are not affected by the court [order]”.
He also said there was no order against future comments being made by the Sunday Times, as this would amount to censorship.
Health Department spokesperson Sibani Mngadi said after the proceedings that the minister was away in Brazzaville, Congo, but had been informed of the order.
Tshabalala-Msimang was “delighted”, he said.
“We believe the government was vindicated.”
The Sunday Times was ordered to pay costs in the court case. This decision was based on the newspaper’s knowledge of the minister’s medical reports having been unlawfully obtained.
“They acted in contravention of the National Health Act by making unauthorised copies,” read the judgement.
“This sort of conduct cannot be condoned.”
Jajbhay added that journalists should be cautious when using information that was tainted with criminal activity.
“There is an ethical obligation on journalists in matters such as the present to ascertain whether the document that they are armed with has in fact been legally obtained,” he wrote.
Jajbhay’s judgement described the case as being difficult.
“When two competing constitutional rights come into conflict, one right must suffer.”
On the argument presented by the Sunday Times of the story being in sufficient public interest, Jajbhay said: “Here we are dealing with a person who enjoys a very high position in the eyes of the public and it is the very same public that craves attention in respect of the information that is in the hands of the Sunday Times.”
On the other hand, the judgement also read that Tshabalala-Msimang and any other patient’s right to privacy was paramount.
“We assert the value of privacy because of our constitutional understanding of what it means to be a human being.”
On press freedom, the judgment noted that no unreasonable restraint should be placed on the press as to what they could publish.
He further noted that public interest was a “mysterious concept” and that there was often little, if any, consensus on what constituted public interest.
It is “like a battered piece of string charged with elasticity, impossible to measure or weigh”.
“The concept changes with the dawn of each new day, tempered by the facts of each case.”
The South African National Editors’ Forum (Sanef) welcomed the ruling.
However, the judge’s acceptance of the Sunday Times‘s defence that it acted in the public interest in divulging the records’ contents is welcomed because it upholds an important journalistic principle in support of press freedom, Sanef said in a statement.
“The documents reflected on the allegedly abusive conduct of the health minister while she was in hospital and on her alleged drinking before and after undergoing a liver transplant, all matters of public interest,” Sanef said. “The important ruling by the judge is that publication of that information was entirely legitimate and in the public interest in the light of the health minister being a public figure
Mngadi said the minister and all people using health facilities could do so knowing that their rights were looked after.
“I hope [Sunday Times editor] Mondli Makhanya is swallowing his words. At first he said he was 200% correct and now after the court has ruled ... he must even pay the costs of the legal process.”
He also said he believed there was a vendetta against Tshabalala-Msimang.
“I do believe there was a vendetta and certain things were used to settle a political agenda. People are aggrieved about political decisions and are taking this path to attack.”
However, he said the department and the minister would have to study the judgement.
Sunday Times deputy managing editor Susan Smuts, who was in court, said the newspaper would have to study the judgement and that only her editor could comment.—Sapa
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